Perhaps you have noticed that the legal profession really
loves Latin phrases. Good thing I took
two years of Latin at Arlington-Green
Isle High
School!
Ex parte is one of those Latin phrases often used in
law. It is an important phrase,
especially for judges. It translates as
“from one party.” As it applies to
judges, it is a rule that says in
litigation one side cannot give the judge information that is not
provided to the other side.
Our system of Justice is the adversary system. Each side presents its evidence, makes its
arguments, and the theory is that the judge is able to sort out the
inconsistencies and make the correct decision.
There are, of course, numerous times when things can go wrong, but, by
and large, our system has worked well for a couple hundred years or more.
If, however, one side is able to give the judge information
that the other side does not know, and to which it cannot reply, that would be
an unfair advantage. That is why ex
parte communications with a judge are strictly prohibited.
If an attorney engages in ex parte communications, he or she
can be disciplined by the Lawyers Professional Responsibility Board. If a judge engages in ex parte
communications, he or she can be disciplined by the Board of Judicial
Standards. These are not fun encounters
and judges and lawyers alike and are avoided as much as possible.
Sometimes, judges receive information from people not
directly involved in the case, but know something about it from one of the parties. These are very difficult situations for
judges, as these folks are just doing what they think is right. They think they are helping their friend so
the judge will have the full picture.
(This most often happens in family court matters, especially custody or
parenting time disputes.)
The result of this type of communication , however, is that
the judge at the least has to disclose the communication to both sides, and
depending on the information submitted, the judge may have to disqualify
himself from any further consideration on the case. When that happens, another judge steps in and
has to get up to speed on what has happened before in the case. It is not a good use of public
resources. But it is sometime necessary to
ensure that both parties have the full benefit of a fair trial, by an impartial
judge, not improperly in possession of ex parte information.
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Next week: Excuses,
Excuses
